Telemarketing Alert: New York’s Nuisance Call Act

In December 2019, New York Governor Andrew Cuomo signed legislation enacting the Nuisance Call Act. The Act closes a loophole in Do Not Call Registry that permitted live telemarketers to call those on the list.

It requires live voice outbound telemarketers to provide consumers the option to be added to the seller’s DNC list. If a consumer exercises that right, the telemarketer must immediately terminate the call and add the number called to such list or cause the number called to be added to such list.

The requirements previously applied only to pre-recorded voice calls. In 2001, New York’s DNC law became effective, permitting consumers to opt-out of receiving pre-recorded voice messages. Simply stated, the Act targets live telemarketing, previously exempt from New York’s DNC law.

“This loophole is a license to annoy New Yorkers that telemarketers have taken advantage of for far too long,” Governor Cuomo said. “With these new protections, we can help ensure New Yorkers receive fewer unwanted calls and their privacy is protected once and for all.”

The Federal Do Not Call Registry already applies to prerecorded telemarketing messages and live telemarketing.

The Act also restricts how consumer data is disseminated by requiring telemarketers and sellers to obtain a consumer’s “express agreement,” in writing or electronic format, before transmitting, selling, sharing or otherwise making available their contact information (unless otherwise required by law, or pursuant to a lawful subpoena or court order), including name telephone number and email address, to any person, corporation or other entity.

Importantly, the Act retains the existing safe harbor exemption for companies that obtain a version of the national Do Not Call registry at least every 31 days prior to the date any telemarketing call is made, and that develop, implement and document an appropriate DNC compliance program.

Telemarketers and sellers shall keep for a period of twenty-four months, from the date the record is created, records relating to its telemarketing activities.

The Act is widely considered one of the most stringent telemarketing compliance laws in the nation. It will almost certainly impact the outbound calling and data sharing practices of telemarketers. In effect, it mandates that telemarketers take steps that may result in the loss of customers because consumers must be asked if they want to be placed on the seller’s internal DNC list.

Bear in mind that there are federal, state and company-specific DNC lists. New York’s telemarketing laws generally apply to calls made to consumers located within the state.

Consult with a telemarketing and TCPA attorney if you are interested in learning more about the Nuisance Call Act. Violations of the Act can result in drastic fines of up to $11,000, per violation. While there is no private right of action provided by the Act, aggrieved consumers may possess other remedies, including via the Telephone Consumer Protection Act.

The Act amends New York’s telemarketing law (N.Y. Gen. Bus. Law § 399-z) and becomes effective March 1, 2020.

Richard B. Newman is an FTC attorney at Hinch Newman LLP.

Informational purposes only. Not legal advice. May be considered advertising material.

Richard B. Newman

Richard B. Newman is a nationally recognized FTC advertising compliance, CID investigation and regulatory enforcemetn attorney. He regularly provides advertising counsel and represents clients in high-profile investigations and enforcement proceedings initiated by the Federal Trade Commission, state attorneys general, departments of consumer affairs, and other federal and state agencies with jurisdiction over advertising and marketing practices. Richard is also an ecommerce lawyer and spam defense attorney. His practice additionally focuses upon false advertising defense, data privacy, cybersquatting, intellectual property law and transactional matters relating to the dissemination of national advertising campaigns, including the gamut of affiliate marketing, telemarketing, lead generation, list management and licensing agreements. Richard advises clients on how to minimize the legal risks associated with digital marketing, email marketing, telemarketing, social media influencer campaigns, endorsements and testimonials, negative option marketing models, native advertising, online promotions and comparative advertising,

To Learn More About This Topic or if You Have Questions, Contact an Experienced FTC Compliance and Defense Lawyer